United States v. Davis, No. 18-431

• Court: United States Supreme Court
• Writing for the Court: Justice GORSUCH delivered the opinion of the Court.
• Citation: 204 L.Ed.2d 757,139 S.Ct. 2319
• Parties: UNITED STATES, Petitioner v. Maurice Lamont DAVIS and Andre Levon Glover
• Docket Number: No. 18-431
• Decision Date: 24 June 2019

139 S.Ct. 2319
204 L.Ed.2d 757

UNITED STATES, Petitioner
v.
Maurice Lamont DAVIS and Andre Levon Glover

No. 18-431

Supreme Court of the United States.

Argued April 17, 2019
Decided June 24, 2019

Noel J. Francisco, Solicitor General, Department of Justice, Washington, DC, for Petitioner.

Noel J. Francisco, Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Erica L. Ross, Assistants to the Solicitor, General, Robert A. Parker, John P. Taddei, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Jeffrey T. Green, Tobias S. Loss-Eaton, Chike Croslin, Gabriel Schonfeld, Sidley Austin LLP, Washington, DC, Sarah O'Rourke Schrup, Northwestern Supreme, Court Practicum, Chicago, IL, Brandon E. Beck, J. Matthew Wright, K. Joel Page, Jason Hawkins, Federal Defender for N. District of Texas, Lubbock, TX, J. Joseph Mongaras, Tiffany Talamentez, Udashen & Anton, Dallas, TX, for Respondents.

Justice GORSUCH delivered the opinion of the Court.

139 S.Ct. 2323

In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Today we apply these principles to 18 U.S.C. § 924(c). That statute threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. But which other federal crimes? The statute's residual clause points to those felonies "that by [their] nature, involv[e] a substantial risk that

139 S.Ct. 2324

physical force against the person or property of another may be used in the course of committing the offense." § 924(c)(3)(B). Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute's text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

I

After Maurice Davis and Andre Glover committed a string of gas station robberies in Texas, a federal prosecutor charged both men with multiple counts of robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and one count of conspiracy to commit Hobbs Act robbery. The prosecutor also charged Mr. Davis with being a felon in possession of a firearm. In the end, a jury acquitted Mr. Davis of one robbery charge and otherwise found the men guilty on all counts. And these convictions, none of which are challenged here, authorized the court to impose prison sentences of up to 70 years for Mr. Davis and up to 100 years for Mr. Glover.

But that was not all. This appeal concerns additional charges the government pursued against the men under § 924(c). That statute authorizes heightened criminal penalties for using or carrying a firearm "during and in relation to," or possessing a firearm "in furtherance of," any federal "crime of violence or drug trafficking crime." § 924(c)(1)(A). The statute proceeds to define the term "crime of violence" in two subparts—the first known as the elements clause, and the second the residual clause. According to § 924(c)(3), a crime of violence is "an offense that is a felony" and

"(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

"(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

Violators of § 924(c) face a mandatory minimum sentence of five years in prison, over and above any sentence they receive for the underlying crime of violence or drug trafficking crime. The minimum sentence rises to 7 years if the defendant brandishes the firearm and 10 years if he discharges it. Certain types of weapons also trigger enhanced penalties—for example, a defendant who uses a short-barreled shotgun faces a minimum sentence of 10 years. And repeat violations of § 924(c) carry a minimum sentence of 25 years.¹

At trial, the government argued that Mr. Davis and Mr. Glover had each committed two separate § 924(c) violations by brandishing a short-barreled shotgun in connection with their crimes. Here, too, the jury agreed. These convictions yielded a mandatory minimum sentence for each man of 35 years, which had to run consecutively

139 S.Ct. 2325

to their other sentences. Adding the § 924(c) mandatory minimums to its discretionary sentences for their other crimes, the district court ultimately sentenced Mr. Glover to more than 41 years in prison and Mr. Davis to more than 50 years.

On appeal, both defendants argued that § 924(c)'s residual clause is unconstitutionally vague. At first, the Fifth Circuit rejected the argument. United States v. Davis , 677 Fed.Appx. 933, 936 (2017) (per curiam ). But after we vacated its judgment and remanded for further consideration in light of our decision in Sessions v. Dimaya , 584 U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), striking down a different, almost identically worded statute, the court reversed course and held § 924(c)(3)(B) unconstitutional. 903 F.3d 483, 486 (2018) (per curiam ). It then held that Mr. Davis's and Mr. Glover's convictions on one of the two § 924(c) counts, the one that charged robbery as a predicate crime of violence, could be sustained under the elements clause. But it held that the other count, which charged conspiracy as a predicate crime of violence, depended on the residual clause; and so it vacated the men's convictions and sentences on that count.

Because the Fifth Circuit's ruling deepened a dispute among the lower courts about the constitutionality of § 924(c)'s residual clause, we granted certiorari to resolve the question. 586 U.S. ––––, 139 S.Ct. 782, 202 L.Ed.2d 511 (2018).²

II

Our doctrine prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers. See Dimaya , 584 U.S., at –––– – ––––, 138 S.Ct., at 1212–1213 (plurality opinion); id. , at –––– – ––––, 138 S.Ct., at 1224–1228 (GORSUCH, J., concurring in part and concurring in judgment). Vague laws contravene the "first essential of due process of law" that statutes must give people "of common intelligence" fair notice of what the law demands of them. Connally v. General Constr. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) ; see Collins v. Kentucky , 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510 (1914). Vague laws also undermine the Constitution's separation of powers and the democratic self-governance it aims to protect. Only the people's elected representatives in the legislature are authorized to "make an act a crime." United States v. Hudson , 7 Cranch 32, 34, 11 U.S. 32, 3 L.Ed. 259 (1812). Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they are expected to abide. See Kolender v. Lawson , 461 U.S. 352, 357–358, and n. 7, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ; United States v. L. Cohen Grocery Co. , 255 U.S. 81, 89–91, 41 S.Ct. 298, 65 L.Ed. 516 (1921) ; United States v. Reese , 92 U.S. 214, 221, 23 L.Ed. 563 (1876).

In recent years, this Court has applied these principles to two statutes that bear more than a passing resemblance to § 924(c)(3)(B)'s residual clause. In Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the

139 S.Ct. 2326

Court addressed the residual clause of the Armed Career Criminal Act (ACCA), which defined a "violent felony" to include offenses that presented a "serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). The ACCA's residual clause required judges to use a form of what we've called the "categorical approach" to determine whether an offense qualified as a violent felony. Following the categorical approach, judges had to disregard how the defendant actually committed his crime. Instead, they were required to imagine the idealized " ‘ordinary case’ " of the defendant's crime and then guess whether a " ‘serious potential risk of physical injury to another’ " would attend its commission. Id. , at ––––, 135 S.Ct., at 2557. Johnson held this judicial inquiry produced "more unpredictability and arbitrariness"...